Land and Environment Court New South Wales Medium Neutral Citation: Australian Catholic University Limited v Minister for Planning and Infrastructure and Anor [2015] NSWLEC 1174 Hearing dates: 21 May 2015 Date of orders: 21 May 2015 Decision date: 21 May 2015 Jurisdiction: Class 1 Before: Fakes C, O'Neill C Decision: 1. The Notice of Motion to amend Condition A5 of Schedule 2 [Part A – Terms of Approval] handed down with the reasons for judgment on 18 November 2014, is upheld. 2. The amended terms of Condition A5 of Schedule 2 [Part A Terms of Approval] are as set out in 'Schedule A' as attached. 3. The consolidated Modified Manner of Approval is attached as Schedule 'B'. Catchwords: PRACTICE AND PROCEDURE: application to amend conditions of consent Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Australian Catholic University Limited v Minister for Planning and Infrastructure [2014] NSWLEC 1238. Category: Principal judgment Parties: Australian Catholic University Limited (Applicant) Minister for Planning and Infrastructure (First Respondent) Strathfield Municipal Council (Second Respondent) Representation: Counsel: Applicant: Mr D Miller SC First Respondent: Ms J Smith (Solicitor) Second Respondent: Mr D Baird (Solicitor) Solicitors: Applicant: Clayton Utz First Respondent: Department of Planning and Infrastructure Second Respondent: HWL Ebsworth Lawyers File Number(s): 10350 of 2013 Judgment 1. COMMISSIONERS: In November 2014, in Australian Catholic University Limited v Minister for Planning and Infrastructure and Anor [2014] NSWLEC 1238 (the judgment), the Court granted conditional approval for the Concept Plan application for the proposed upgrading of the Australian Catholic University at 167-169 Albert Road, and 179 Albert Road Strathfield. 2. The manner and conditions of the approval, as well as the Statement of Commitments were set out in Schedules 1, 2 and 3 and attached as Annexure A to the orders. 3. The second respondent has identified two discrepancies between the reasons given in the judgment and in two elements of Condition A5, Schedule 2 – Part A – Terms of Approval. To this end, the second respondent has filed a Notice of Motion seeking orders from the Court to amend those elements of Condition A5 of Schedule 2 – Part A – Terms of Approval in the orders made in that judgment. 4. The first discrepancy is found in paragraph [126] of the judgment. This states in part: 126 Therefore, we propose to allow an increase in the total number of people on site at any one time to 1800 once stages 1A and 1B have been completed….. 1. This conclusion arises from consideration, in the preceding paragraphs, of the number of additional car parking spaces required to be provided on campus in order to accommodate the proposed increase in numbers of people on site at any one time and achieve an improvement in the level of on-street parking arising from the activities of the University. 2. Condition A5(a)(i) as included in the November 2014 approval states: (i) No increase in Campus population allowed at any one time under the existing development consents until the underground car park comprising stage 1A has been completed and is available for use; 1. The second respondent, with the consent of the applicant and the first respondent, seeks to have that condition amended, to reflect the findings in [126] of the judgment and to read as follows: (i) No increase in Campus population allowed at any one time under the existing development consents until the on-site car parking within stages 1A and 1B have been completed and are available for use. 1. In our view, the omission of '1B' is an accidental omission as the intent of [126] of the judgment is to require the parking spaces associated with that stage to be provided before the numbers of people on site at any one time could be increased to 1800. We are satisfied that the Court has the power under Part 36.17 Uniform Civil Procedure Rules 2005 (UPCR), the 'slip rule' to make this amendment. This Part states: 36.17 If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may at any time, correct the mistake or error. 1. If we are wrong in this, we agree with the parties that the Court also has the power to vary an order under Part 36.16(1) as the orders have not yet been entered. This clause states: 36.16 (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before the entry of the judgment or order. 1. On this basis, we agree to amend Condition A(5)(a)(i) in the terms agreed by the parties and provided in [7] above. This also requires a minor grammatical amendment to Condition A5(a)(ii) to change the word 'area' to 'areas'. 2. The second discrepancy arises from the use of the phrase 'perhaps a maximum of six per year'' in paragraph [202] of the judgment in the context of the number of weekend events permitted to be held on the campus. Apart from creating a degree of uncertainty, the finding is not reflected in the relevant condition A5.(b)(iv), which as originally drafted reads: (iv) if an event is proposed to be held on the Campus on an occasional basis by the Proponent or another group, for educational or ecclesiastical purposes, and the event will generate a greater Campus population than the number of available on-site car-parking spaces, the Proponent must notify the Council no later than 14 days prior to the event. 1. With the consent of the parties, and pursuant to the Court's power under Part 36.16(1) UPCR, we agree to vary the orders by amending Condition A5(b)(iv) to read as follows: (iv) if an event is proposed to be held on the Campus on an occasional basis by the Proponent or another group, for educational or ecclesiastical purposes, and the event will generate a greater Campus population than the number of available on-site car-parking spaces, the Proponent must: (1) only allow a maximum of six (6) such events per year; (2) notify Council no later than 14 days prior to the event; (3) notify the community by a notice in a local newspaper, no later than 14 days prior to the event; and (4) notify the community by a notice on the campus homepage, no later than 14 days prior to the event, for a period of 14 days. Orders 1. We make the following orders: 1. The Notice of Motion to amend Condition A5 of Schedule 2 [Part A – Terms of Approval] handed down with the reasons for judgment on 18 November 2014, is upheld. 2. The amended terms of Condition A5 of Schedule 2 [Part A Terms of Approval] are as set out in 'Schedule A' as attached. 3. The consolidated Modified Manner of Approval is attached as Schedule 'B'. _______________________ ________________________ Judy Fakes Susan O'Neill Commissioner of the Court Commissioner of the Court 10350 of 2013 Fakes and O'Neill (C) (92.6 KB, pdf) ****************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 May 2015